1. WCLA MCLE 7-11-2017 Case Law Update: Holocker & Marque Medicos
Tuesday July 1, 2017
12:00 noon to 1 pm
James R. Thompson Center Auditorium, Chicago, IL
1 hour general MCLE credit

2. Scott Holocker v. Komatsu America 12 WC 033397; 15 IWCC 0315
Arbitration Decision,
: Petitioner operating an overhead crane; metal chain mail strap snapped and hit him in the face and chest
Underwent four surgical procedures to his face and mouth
7-3-13: Required to operate a crane and experienced a panic attack; immediately visited the onsite occupational nurse
: Dr. Vilatte, who noted that Petitioner was experiencing panic attacks and anxiety doing job and prescribed non- sedating anti-anxiety medication; recommended that Petitioner be placed at another job while adjusting to medication
: Dr. Moody, Respondent's company doctor cleared Petitioner without restrictions for janitorial position and recommended a restriction of no crane operation for six to eight weeks if he returned to his previous position as a transportation utility worker (RTW ).
: Counseling with Jennifer Boehs, LCSW, for crane related anxiety; diagnosed Petitioner with PTSD as a result of his work injury; Petitioner avoid operating a crane for at least one year
: Petitioner's employment with the Respondent terminated as a result of failure to call in or report to work for three consecutive days in violation of the terms contained in the collective bargaining agreement
1-9-14: Dr. Landre at request of Respondent; anxiety related to incident; RTW to all duties except crane operation

3. Scott Holocker v. Komatsu America 12 WC 033397; 15 IWCC 0315
Arbitration Decision,
Petitioner claims entitlement to TTD based upon the “Appellate Court” decision in Interstate Scaffolding, Inc.
When his employment was terminated by Respondent, the Petitioner was still treating for his injury and he was still subject to work restrictions imposed by Jennifer Boehs, a Licensed Clinical Social Worker, as well as Dr. Moody, the Respondent's company doctor, and Dr. Nancy Landre, the Respondent's examining psychologist.
Respondent asserts that the Petitioner is not entitled to TTD because Petitioner's condition of ill being had stabilized and his restriction does not preclude him from re-entering the work force
Arbitrator notes that a review of the record demonstrates that, as of date employment was terminated by Respondent, Petitioner had not been released to unrestricted full duty work. Although Petitioner had been released to return to work with restrictions and he was able to perform that work, none of the physicians who examined or treated the Petitioner indicated that the Petitioner had reached maximum medical improvement. The medical evidence establishes that the Petitioner continues to be treated for his injuries and that he continues to experience symptoms connected with his work related injury. Arbitrator concludes that the Petitioner's condition had not stabilized as of date his employment was terminated
Entitled to TTD benefits from October 15, 2013, the date the Petitioner's employment with the Respondent was terminated, through January 29, 2014, the date of Arbitration
Penalties denied: “not unreasonable and vexatious”

4. Scott Holocker v. Komatsu America 12 WC 033397; 15 IWCC 0315
IWCC Decision, ; TTD award “vacated”
Petitioner was discharged from his employment on October 15, 2013 for reasons unrelated to his claim
Petitioner claimed that he had not reached maximum medical improvement for his dental injuries and post traumatic anxiety and he remained under temporary restrictions at the time of his termination.
Respondent indicated Petitioner was not temporarily totally disabled from work and his restrictions regarding crane usage did not prevent him from obtaining employment elsewhere. When terminated Petitioner was performing full duty work within his regular job classification
Interstate Scaffolding: Petitioner’s ability to find work in the open labor market was significantly limited/precluded by work-related condition
Working full duty within his job classification of "transportation operator" until termination; performed one of the numerous jobs that did not involve crane usage…it was not necessary for Respondent to either modify an existing job or create an accommodating job…could have continued to work indefinitely without any crane exposure
Petitioner offered no evidence of significantly limited or precluded from reentering the labor market because he needed to temporarily avoid cranes. Petitioner offered no explanation why he had been unable to secure employment
Petitioner's work related injuries had stabilized and had no impact on his employment.
AWW/OT issue

5. Holocker v. IWCC 2017 IL App (3d) 160363WC
Petitioner sought judicial review of the Commission’s decision before the circuit court of Peoria County. The circuit court reversed the Commission’s denial of TTD benefits and adopted the arbitrator’s award of TTD benefits. The court also reversed the Commission’s calculation of the claimant’s average weekly wage and affirmed the Commission’s denial of penalties and attorney fees.
This appeal followed.(Reverses the judgment of the circuit court, which reversed
the decision of Commission, and reinstates the Commission’s decision)
In early October 2013, the claimant took a scheduled vacation to Mexico. When he returned, he was ill with severe nausea and diarrhea. He missed work from Tuesday, October 8,2013, through Friday, October 11, He also missed the first four hours of his shift on Monday, October 14, Although he called in sick on October 8, he failed to notify the employer that he was unable to work his scheduled shifts from October 9 through October 11.

6. Holocker v. IWCC 2017 IL App (3d) 160363WC
The Commission found Interstate Scaffolding to be distinguishable from the claimant’s case in several material respects. In Interstate Scaffolding, “the claimant's ability to find work in the open labor market was significantly limited or precluded by his work-related condition.” Here, by contrast, the Commission noted that the claimant had “offered no evidence that he was significantly limited or precluded from reentering the labor market because he needed to temporarily avoid cranes.”

7. Holocker v. IWCC 2017 IL App (3d) 160363WC
“Fundamental purpose of the Act is to provide injured workers with financial protection until they can return to the work force. Therefore, when determining whether an employee is entitled to TTD benefits, the test is whether the employee remains temporarily totally disabled as a result of a work-related injury and whether the employee is capable of returning to the work force.”
Applying these standards, we cannot say that the Commission’s decision to deny TTD benefits after the claimant’s termination on October 15, 2013, was against the manifest weight of the evidence.
It is undisputed that, at the time of his termination, the claimant had not reached MMI and he was still undergoing dental treatments and attending counseling sessions for his crane-related anxiety.
However, it is also undisputed that, from the time he returned to work for the employer after his panic attack in July 2013 until his termination on October 15, 2013: (1) the claimant had been released to work fully duty with only one work restriction, i.e., that he not operate a crane; (2) the claimant continued to work full duty as a “transportation operator” within his original job classification without being required to operate a crane; and (3) it was not necessary for the employer to either modify an existing job or create a “light duty” job to accommodate the claimant's work restrictions. Moreover, DuBois, the employer’s Human Resources Manager, testified that the claimant could have continued to work for the employer in his current position without being required to operate a crane.

8. Holocker v. IWCC 2017 IL App (3d) 160363WC
Accordingly, there was ample evidence to support the Commission finding that, at the time of his termination, the claimant's work-related injuries had stabilized to the extent that he was able to reenter the workforce and his injuries had no impact on his employment.
Relying on Interstate Scaffolding and Matuszczak, Petitioner argues that: (1) the only dispositive question is whether the claimant had reached MMI prior to his termination; and (2) because he had not, the Commission erred as a matter of law in denying him TTD benefits after his termination. We disagree. It is true that Interstate Scaffolding and Matuszczak each state that “when a claimant seeks TTD benefits, the dispositive inquiry is whether the claimant's condition has stabilized, i.e., whether the claimant has reached maximum medical improvement.”
Interstate Scaffolding and Matuszczak are each distinguishable from the instant case in material respects. In both Interstate Scaffolding and Matuszczak, the question was whether the claimant’s termination for conduct unrelated to the claimant’s injury cut off claimant’s preexisting entitlement to TTD benefits. In each of those cases, it was undisputed that, at the time of termination, the claimant’s condition had not stabilized, that the claimant was unable to perform the job he had been performing for the employer prior to the work accident

9. Holocker v. IWCC 2017 IL App (3d) 160363WC
Interstate Scaffolding does not support the claimant’s argument that an injured employee is entitled to TTD as a matter of law unless he had reached MMI. Near the beginning of its analysis in Interstate Scaffolding, the supreme court states that, when a claimant seeks TTD benefits, the “dispositive inquiry is whether the claimant’s condition has stabilized,” i.e., whether the claimant has reached [MMI].” However, later in its analysis, the supreme court clarified that an injured employee is entitled to TTD benefits “if [he]is able to show that he continues to be temporarily totally disabled as a result of his work-related injury” (id. at 149), and that “when determining whether an employee is entitled to TTD benefits, the test is whether the employee remains temporarily totally disabled as a result of a work-related injury and whether the employee is capable of returning to the work force
One final point bears mentioning. The claimant argues that we should review the Commission’s decision de novo because the facts are undisputed and no conflicting inferences may be drawn from the facts. We disagree. Although the claimant was able to work within his original job classification without operating cranes when he returned to work in July 2013, he had not yet reached MMI and he continued to undergo dental treatments thereafter, including at least one dental surgery in November 2013 that kept him off work entirely for one week. Moreover, although the operation of overhead cranes was no longer part of the claimant’s regular job duties after July 2013, and it was undisputed that the claimant was not required to operate a crane between July 23, 2013, and his termination, it was not undisputed that the claimant would never have had to operate a crane in his capacity as a transportation operator. Accordingly, the record supported conflicting inferences as to whether the claimant’s injuries had stabilized to the extent that he was no longer entitled to TTD benefits. We have therefore reviewed the Commission’s decision under the manifest weight of the evidence standard.

10. Marque Medicos Fullerton v. Zurich American 2017 IL App (1st) 160756
Complaints filed in each lawsuit generally seek redress for defendants’ alleged failure to comply with requirements contained in the Workers’ Compensation Act.
Plaintiffs allege that they—and a class of similarly situated others—had provided medical services to employees for work-related injuries. Pursuant to the Act, the employers of those employees had the responsibility to timely pay for those medical services, with those employers being insured for that responsibility by identical workers’ compensation insurance policies issued by defendants. Noting that the Act requires that late payments to providers, such as plaintiffs, “shall incur interest at a rate of 1% per month payable to the provider” contending that this statutory provision was incorporated into the standard policies issued by defendants, and further contending that defendants had in fact made “many” untimely payments for such services without also paying interest
Circuit court entered a memorandum opinion and order in which it dismissed each of the plaintiffs’ lawsuits with prejudice. In reaching that result, the circuit court concluded (1) plaintiffs were not third-party beneficiaries of the policies, (2) plaintiffs had no implied private right of action for a violation of section 8.2(d)(3) of the Act, (3) the facts alleged in plaintiffs’ complaints did not support the imposition of an implied-in-fact contract, and (4) the remedies contained in section 155 of the Insurance Code do not extend to purported third parties such as plaintiffs. The circuit court’s order did not specifically address the Travelers defendants’ challenge to the court’s subject matter jurisdiction or the Hartford defendants’ challenge to the class allegations.

11. Marque Medicos Fullerton v. Zurich American 2017 IL App (1st) 160756
Subject matter jurisdiction: whether the legislature intended to divest circuit courts of jurisdiction and to place exclusive original jurisdiction in the Commission with respect to plaintiffs’ claims. We discern no such intent.
Scheme is comprehensive and exclusive only with respect to the legal relationship between an injured employee and an employer
Not 3rd party beneficiaries: Even if we accepted plaintiffs’ contention that the direct payment obligations created by the 2005 and 2011 amendments to the Act entitled them to “benefits” under the Act, we would still reject their contention that they were intended third-party beneficiaries of the insurance policies issued by defendants
No private cause of action
No implied contract